On Dec. 13, the US Supreme Court issued a much-anticipated order, granting review in three cases involving requests for president Donald Trump’s financial records via third parties. The president has claimed executive privilege shields the information, though lower courts have found otherwise.
One of the cases stems from a New York grand jury inquiry into alleged hush money Trump paid to women ahead of the 2016 election and involves subpoenas of his records from his accountants at Mazars USA. The other two cases arise from House committee investigations into the president’s finances, with subpoenas issued to banks that did business with Trump and his family.
The Supreme Court’s order doesn’t address any substantive issues, noting only that the two congressional cases have been consolidated and that all three matters will be scheduled for argument in March. The subpoenaed companies have all agreed to turn over the information if ordered to do so, and thus far challenges in lower courts have found the president’s records aren’t as special as he thinks.
But Trump turned to the highest court in the land for help and has been granted stays in all three cases. So the financial records will remain undisclosed while the justices review these matters, and perhaps afterward, too.
From Trump’s perspective, the president has a broad, unqualified privilege, and his affairs must remain confidential. His lawyers have argued that the high court should accept review to ensure that future presidents wouldn’t be distracted from their duties by prosecutors and politicians around the land making records demands. They argue, too, that the congressional requests overreach and violate the separation of powers requirements of the Constitution.
However, not everyone shares Trump’s expansive view of executive power. And while he may view the bench as friendly to his interests, what with five conservative justices seated on the high court and two of them his own appointees—Neil Gorsuch and Brett Kavanaugh—it’s not unreasonable to expect his arguments to face resistance.
This won’t be the first time the high court has considered whether the executive is specially shielded from judicial review, and it hasn’t gone so well for presidents who asked the justices to consider this question.
In Clinton v. Jones in 1997, president Bill Clinton was subpoenaed for a federal civil suit and claimed executive immunity. The court rejected his arguments that presidents were shielded from review with respect to matters arising before they were in office. “The principal rationale for affording Presidents immunity from damages actions based on their official acts–i.e., to enable them to perform their designated functions effectively without fear that a particular decision may give rise to personal liability…provides no support for an immunity for unofficial conduct,” the justices held. The court also reminded the president that privilege stems from the “nature of the function performed, not the identity of the actor who performed it.”
This ruling is relevant to the Mazars case arising from a New York grand jury investigation, indicating that Trump’s activities before he became president aren’t immune from review even if he can’t be criminally prosecuted while in office. Moreover, if the actions being reviewed are payments made to keep women quiet about affairs, that’s not the kind of function that would be shielded by executive privilege anyway.
Similarly, in 1974, the court decided United States v. Nixon, which ended very poorly for the president. Richard Nixon had challenged a special prosecutor’s grand jury request for tapes, documents, memos, and more via his closest aides. The president argued then, as Trump is doing now, that the requests violated the separation of powers doctrine and that executive privilege shielded the president from such disclosures.
Nixon claimed this secrecy was in the interest of national security. The justices on the bench in 1974 disagreed, countering unanimously that “the public has a right to every man’s evidence.” While they conceded there may be situations when the president’s office demands confidentiality in communications, as in matters of diplomacy or military affairs, there was no unqualified executive privilege, and certainly none shielding evidence from judicial review.
Perhaps unsurprisingly, the justices were disinclined to find that courts lacked authority to do what they do, which is review. They considered a court order to produce evidence sufficiently important and authoritative to require executive compliance. The court politely but firmly rejected Nixon’s contention that the president decides what privilege is, writing:
In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications…Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.
This variance in interpretations led to Nixon’s resignation shortly after the Supreme Court’s decision and the precedent suggests that Trump’s lawyers face an uphill battle at the high court.
Still, it’s highly unlikely the Trump cases will have such a dramatic finale. The Nixon ruling addressed records requests in the context of a federal criminal proceeding, leaving open questions about whether the president’s privilege might be broader in other contexts. So although it looks like the precedent is stacked against Trump, his lawyers do have some room to operate, and they will try to pry open those unexplored spaces to secure more power for the president.
The justices will likely issue an opinion by late June.